State Democracy Research Initiative
University of Wisconsin Law School

SOUTH DAKOTA

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South Dakota has statutory and constitutional initiatives, veto referendums, and legislatively referred amendments. The timing of an election may vary depending on the type of ballot measure; while most ballot measures must be submitted to voters at a general election, the legislature may call a special election for a vote on a legislatively referred amendment. The ballot contents and related processes vary somewhat depending on the type of ballot measure: A fiscal note may be required for an initiative or veto referendum (but not a legislatively referred amendment), and the Attorney General must consider public comments only with respect to initiative ballot statements. Regardless of the type of measure, however, the ballot title and explanation are prepared by the Attorney General. This ballot statement may be challenged in court by a measure’s proponents or opponents, but the South Dakota Supreme Court has described its review as limited and affords discretion to the Attorney General.

BACKGROUND INFORMATION

What forms of direct democracy are available, and when?

Statewide Ballot Measures in South Dakota

South Dakota has statutory and constitutional initiatives, veto referendums, as well as legislatively referred amendments.

√ Initiatives – Statutory

√ Initiatives – Constitutional

The people of South Dakota have reserved the initiative power to propose and enact laws and constitutional amendments independently of the legislature. See S.D. Const. art. III, § 1, art. XXIII, §§ 1, 3.

√ Veto Referendums

South Dakotans also have the referendum power to approve or reject any law passed by the legislature, except for laws necessary for the immediate preservation of public peace, health, or safety; or for support of the state government and its existing public institutions. S.D. Const. art. III, § 1.

√ Legislatively Referred Amendments

An amendment to the state constitution proposed by the legislature must be approved by South Dakota voters.  See S.D. Const. art. XXIII, §§ 1, 3.

Election Timing

The timing of an election may vary depending on the form of direct democracy; while most ballot measures must be submitted to voters at a general election, the legislature may call a special election for a vote on a legislatively referred amendment.

  • An initiative is submitted to voters at the next general election following a timely filing of the petition. See D. Codified Laws §§ 2-1-1.1, 2-1-1.2. See also S.D. Const. art. XXIII, § 1.
  • A veto referendum is also submitted to voters at a general election following a timely filing of the petition. See D. Codified Laws § 2-1-3.1 (requiring that petitions be within 90 days after adjournment of the legislature that passed the law being referred to the people).
  • A legislatively referred amendment must be submitted to voters after it is approved by a majority of the members of each legislative house. See D. Const. art. XXIII, §§ 1, 3. South Dakota statutes allow the legislature to call a special election for a vote on a legislatively referred amendment; otherwise, the proposed amendment is submitted to voters at a general election. See S.D. Codified Laws §§ 12-13-27, 12-13-1.

BALLOT PREPARATION

What is included on the ballot, and who prepares it?

The ballot for a statewide ballot measure in South Dakota must display the following information. The contents and related processes vary somewhat depending on the type of ballot measure.

  • Statement of the Attorney General, consisting of two parts, as follows. See D. Codified Laws §§ 12-13-25.1 (governing initiatives), 12-13-9 (governing veto referendums and legislatively referred amendments).
    • (1) Ballot title, which must be a concise statement of the subject of the measure.
    • (2) Explanation (200 words or less), which must be an objective, clear, and simple summary to educate the voters of the measure’s purpose and effect. The Attorney General must also describe the legal consequences, including any likely exposure of the state to liability if the measure were adopted.
    • With respect to an initiative, the Attorney General’s statement is prepared even before a petition may be circulated for signatures. See D. Codified Laws §§ 2-1-1.1(3), 2-1-1.2(3). Sponsors must file a copy of the proposed measure with the Attorney General. See id. §§ 12-13-25.1, 12-13-24 (providing that initiated measures must be drafted in a clear and coherent manner, similar to other legislation, and must not be misleading). Within 60 days, the Attorney General must publish a draft of her statement online; file it with the Secretary of State; and issue a press release indicating the draft has been posted for public comment. Id. The Attorney General must then accept comments for ten days and may revise her statement in response to the comments as deemed necessary. See id.
  • (If applicable, for an initiative or veto referendum) Fiscal note and/or fiscal note summary, prepared by the Director of the Legislative Research Council (50 words or less). See D. Codified Laws §§ 12-13-25.1, 2-9-30 (governing initiatives), 12-13-9, 2-9-32 (governing veto referendums).
    • With respect to an initiative, a fiscal note is prepared even before a petition may be circulated for signatures. See §§ 12-13-25, 2-1-1.1, 2-1-1.2. Sponsors must file a copy of the proposed initiative with the Director for review and comment before a petition may be circulated for signatures. Id. § 12-13-25. If the Director determines that the measure may have an impact on state revenues, expenditures, or fiscal liability, she must prepare a fiscal note estimating this impact. Id. § 2-9-30. This estimate must also include any impact on the prison or jail population. Id. State institutions must provide information requested by the Director to prepare the fiscal note. See id.
    • For a veto referendum, fiscal note information must be included only if the Legislative Research Council Director prepared a fiscal note before the law was passed by the legislature. See § 2-9-32. If the original fiscal note exceeded 50 words, the sponsors must request that the Director prepare a summary that does not exceed 50 words. See id.

INFORMATION TO VOTERS

What information is provided to voters before the election, and how?

Publication

Before any election at which a statewide ballot measure is to be submitted to voters, county auditors must make a publication in each of their county’s official newspapers. See S.D. Codified Laws §§ 12-13-2—12-13-3, 12-13-27. The publication must run once, between two to four weeks before the election. See id. It must include the certified, complete copy of the proposed measure, as well as the title and explanation prepared by the Attorney General. See id.; id. § 12-13-1.

Voter Information Pamphlet

The Secretary of State must publish a pamphlet that includes the following “public information” about each ballot measure. See S.D. Codified Laws § 12-13-23.

  • Statements in favor of and against the measure (300 words or less, each), written by the measure’s proponents and opponents, respectively, if any can be identified.
    • The Secretary of State is not responsible for the contents, objectivity, or accuracy of these statements. However, state statutes make it a misdemeanor to knowingly disseminate false or misleading information about ballot measures. See id. 12-13-16.
  • Attorney General’s statement, including the title and explanation.
  • The number of pages and sections in the proposed and/or referred measure.
  • (If applicable) Fiscal note.

The statute directs that the Secretary of State must “distribute” this pamphlet but does not specify a particular distribution method. See S.D. Codified Laws § 12-13-23.

JUDICIAL REVIEW

When and how can the court step in?

For any type of ballot measure, South Dakota statutes allow a measure’s proponents or opponents to challenge the Attorney General’s statement, including the title and/or explanation, as being inadequate pursuant to the statutory requirements. See S.D. Codified Laws § 12-13-9.2 (referencing id. §§ 12-13-9, 12-13-25.1). A challenger must file an action in circuit court within seven days of the Attorney General’s statement being delivered to the Secretary of State. See id. Any party appealing the circuit court order to the South Dakota Supreme Court must file a notice of appeal within five days. Id. The South Dakota Supreme Court views its reviewing role as “limited,” noting: “We merely determine if the Attorney General has complied with his statutory obligations and we do not sit as some type of literary editorial board.” Ageton v. Jackley, 878 N.W.2d 90, 93, 96 (S.D. 2016) (citation omitted).

Sample case: Ageton v. Jackley, 878 N.W.2d 90 (S.D. 2016) (rejecting a challenge to the Attorney General’s statement, including argument that the explanation improperly combined the measure’s purpose and effect; holding the Attorney General did not abuse his discretion).

For a proposed constitutional amendment, South Dakota statutes also allow interested parties to appeal a decision by the Secretary of State not to certify a proposed amendment on single-subject grounds. See S.D. Codified Laws § 12-13-26.2.